Law Enforcement Services Agreements
Deputization agreements work for Indian nations that have established their own
police departments. Most tribes, however, affected by Public Law 280 have no law
enforcement agencies, largely because of historic lack of funding from the BIA (see
Chapter 1). For those tribes that lack police departments but are fortunate enough to have
substantial resources from gaming or other economic development, law enforcement
services agreements have become a way of enhancing police services from county
sheriffs. Examples include agreements between the Soboba Band of Mission Indians and
Riverside County, California (2006),40 Blue Lake Rancheria and Humboldt County,
California,41 the Confederated Tribes of Grand Ronde and Polk County, Oregon (1999),
the Muckleshoot Tribe and King County, Washington (2000)
, and the Ho Chunk Nation
and Jackson County, Wisconsin (2005).
386
37 See Wis. Stat. § 165.90.
38 Wis. Stat. § 165.90(3m)(a)-(c). The Wisconsin DOJ also considers the level of unemployment on the
reservation and the crime rate in the service area in determining how much to award each program.
Discussion with Kelly Kennedy, Wisconsin DOJ. See also Wisconsin Joint Committee on Finance, Paper
#120 (May 11, 2005) at 1, available at www.legis.state.wi.us/lfb/2005-07budget/BudgetPapers/120.pdf (last
visited August 18, 2007).
39 The CTLE program is distinct from two similar programs administered by Wisconsin’s Office of Justice
Assistance (OJA): (i) the county law enforcement services grant program, and (ii) the tribal law
enforcement assistance grant program. The county grant program applies to a county that: (1)
borders one
or more federally recognized Indian reservations (compare DOJ-administered CTLE program, which funds
law enforcement programs involving reservations wholly or partially within a county);
(2) has not established a cooperative CTLE program under the DOJ’s grant program with each such tribe or
band; (3) demonstrates a need for grant-eligible law enforcement services; and (4) applies for a grant and
submits a proposed plan showing how the funds will be used to support law enforcement services. Pursuant
to its enabling legislation, the OJA cannot award a grant of more than $50,000 to any county. The OJA’s
tribal law enforcement program requires interested tribes to demonstrate their need, as well as a proposed
plan for spending the grant. Recently, there has been considerable discussion of merging the OJA and DOJ
programs within one agency, but as of this writing the largely duplicative programs remain in force.
40 See Kenny Klein, “Reservation Patrols Beefed Up,” Riverside Press-Enterprise, March 28, 2006.
41 Christine Bensen-Messinger, “Blue Lake to Fund Deputies,” The Eureka Reporter, Sept. 1, 2005.
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
Law enforcement services agreements allow tribes to tailor services to their
communities. Over and above base services that the county may acknowledge its
obligation to provide, the agreement will typically commit the county to assigning a
specific number of deputies to patrol the reservation and discharge other duties. For
example, the 2000 Muckleshoot Indian Tribe Interlocal Agreement with King County,
Washington provides that the duties of dedicated officers will include: “enhanced 911
response; providing crime prevention analysis and training to the tribal community,
which may include block watch or community action programs; problem solving crime
and disorder problems within the tribal community; interact with and mentor tribal youth;
provide special emphasis to community concerns; and build partnerships with community
members to prevent crime.” The agreement also allows the Tribe to participate in
selection of dedicated officers by interviewing and recommending candidates, and
establishes a mechanism for regular evaluation by the Tribal Council of the quality of
services provided. Tribes may also use law enforcement services agreements to promote
cultural awareness and sensitivity among county law enforcement officers. For example,
pursuant to its 2005 services provision agreement with the Ho-Chunk Nation,
Jackson
County, Wisconsin, agreed to train its law enforcement officers in tribal tradition and
culture, the role of clan mothers in the Nation’s dispute-resolution tradition, the Nation’s
Children and Family Services Division, and the Indian Civil Rights Act.
Law enforcement services agreements typically address liability issues by
recognizing that the county retains control over and responsibility for its officers and
employees, and establishing that the county will indemnify the tribe for wrongful acts
committed by such personnel. While the tribe may also agree to indemnify the county for
wrongful acts of its officers or employees, the fact that there is no tribal police
department greatly lessens the possibility of such indemnification becoming necessary.
In the case of the 2000 Muckleshoot agreement, the parties agreed to a limited waiver of
their sovereign immunity solely for purposes of enforcing the agreement, and then the
tribe further limited its exposure to the amount of a $2 million general liability insurance
policy that it agreed to maintain.
Other Alternatives: Federal Law Enforcement Commissions and Statutory Peace Officer
Status
Tribal-state cooperative law enforcement agreements,
by definition, presuppose
shared interests and mutual consent. However, relations between counties and tribes are
not always that cordial and mutually respectful. For example, in the late 1990s the White
Earth Band of Chippewa Indians entered into a deputization agreement with the three
counties within its reservation boundaries. By late 2001, two of the counties withdrew
from the agreement, claiming that the tribal police were spending more time on traffic
enforcement, especially against non-Indian drivers, than on community policing of the
parts of the reservation remote from the sheriffs’ departments. Eventually, with the help
387
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
of federal mediators, one of the counties reestablished an agreement.42 The possibility of
shifting state or county politics, however, can make cooperative agreements of any kind
an unstable arrangement for an Indian nation.
However, Indian nations can achieve many of the goals of cooperative agreements
by means that do not depend on favorable county politics. As discussed above,43 tribes in
PL 280 jurisdictions are eligible for special, federal law enforcement commissions
because of the federal, Indian country criminal jurisdiction that remains even after
Congress has authorized state jurisdiction under PL 280. Once tribal officers take on
federally commissioned status, they may qualify for state peace officer status or have the
powers of arrest of a state peace officer as a matter of state law.
44 These powers would
arise without regard to any agreement with the state or a local county. In California,
however, some county sheriffs have taken the position that these powers may only be
exercised after the sheriff has issued a “letter of convenience.” While special federal law
enforcement commissions may partially address the issue of lack of tribal police authority
over non-Indians, they have some limitations. For example, they do not provide access to
state law enforcement telecommunications systems.
A more direct way for tribal police to secure state peace officer status is for the
state to enact a law conferring such status on tribal officers who have completed the state
certification program. Kansas, which received criminal jurisdiction over reservations in
that state under a pre-PL 280 federal statute, passed such a measure in 2004.45 It allows
tribal law enforcement officers to exercise the powers of peace officers anywhere within
the exterior limits of the tribe’s reservation, so long as the tribe has obtained liability
insurance coverage for damages assessed in state or federal court from acts of the tribal
law enforcement agency in specified amounts,46 the tribe’s policy carries an endorsement
to provide coverage for mutual aid assistance, and the tribe has waived its sovereign
immunity up to the amounts of the insurance coverage. Claims brought against the tribal
law enforcement agency under this measure must be processed as if the tribe were the
state pursuant to the Kansas Tort Claims Act. Peace officer status under the state statute
388
42 U.S. Department of Justice, Community Relations Service, FY 2003 Annual Report, available at http://
www.usdoj.gov/crs/pubs/fy2003/annualreport2003.htm (last visited August 18, 2007).
43 See pp. 382-383, supra.
44 See, e.g., Cal. Penal Code § 830.8. Under California law, federal officers may exercise the powers of
arrest of a peace officer when they are enforcing federal law and, “When probable cause exists to believe
that a public offense that involves immediate danger to persons or property has just occurred or is being
committed.”
45 Kan. Stat. Ann. § 22-2401a. Minnesota has a law conferring peace officer status under specified
conditions, but one of them is that the tribe involved must also have a cooperative agreement with the local
county. See Minn. Stat. § 626.93.
46 $500,000 for any one person and $2,000,000 for any one occurrence for personal injury, and $1,000,000
for any one occurrence for property damage.
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
is not intended to preclude deputization or other agreements between local governments
and tribes. California tribes organized a campaign to secure passage of such a law in
2001,47 but were unsuccessful, largely because of controversies over the amount of
insurance that Indian nations would have to maintain and the waiver of sovereign
immunity.
Assessing Tribal-State Cooperative Law Enforcement Agreements: Accountability,
Funding, and Jurisdiction
In Barker and Mullen’s sample of tribal and BIA police departments, which did
not differentiate between PL 280 and non-PL 280 jurisdictions,
nearly 85% of
respondents had cooperative agreements. These departments commonly reported benefits
such as increased crime control, the ability to use the other’s facilities and equipment,
closure of jurisdictional cracks, mutual assistance, faster response times, and the ability to
handle the others calls during staff shortages.48 As our literature review in Chapter 2
suggests, however, these agreements may meet with difficulties because of lack of
funding, statutes barring tribes from receiving shares of court fines, inadequate responses
to reservation calls by the non-Indian agency, and fear or distrust from the non-Indian
community.
Perhaps an even larger problem with cross-deputization agreements is that
they further encourage a crime-control, professional model of policing rather than an
Indian police model. Finally, the existence and success of tribal-state cooperative law
enforcement agreements depends upon a lack of antagonism between the tribal and nontribal police, elected representatives, and constituents.49
Our own intensive analysis of 16 such agreements from PL 280 jurisdictions,
including the related published literature, has focused on how these agreements affect the
degree of accountability, and funding of law enforcement and criminal justice in PL 280
Indian country. Deputization and law enforcement services agreements are considered
separately. Nonetheless, it’s important to note at the outset that neither type of agreement
affects the operation of state criminal jurisdiction in Indian country. Indeed, both types of
agreements make it more likely that tribal members will be cited into state court for
violations of state law. It’s possible that the good relations fostered by cooperative law
enforcement agreements may lead to agreements between tribal and county court systems
as well. For example, the two systems could establish arrangements, such as deferred
prosecution (referral of state cases to tribal court) or holding of county court sessions in
the tribal courthouse (to facilitate participation and compliance by tribal community
389
47 See Jonathan Mills & Kara Brown,
“Law Enforcement in Indian Country: The Struggle for a Solution,”
available at http://w3.uchastings.edu/plri/PDF/indiancountry.PDF (last visited August 18, 2007).
48 Michael Barker and Kenneth Mullen, “Cross-Deputization in Indian Country” 16 Police Studies No. 4
157, 164-65 (1998).
49 Id. at 164.
This document is a research report submitted to the U.S. Department of Justice. This report has not
been published by the Department. Opinions or points of view expressed are those of the author(s)
and do not necessarily reflect the official position or policies of the U.S. Department of Justice.
members). There, however, is no necessary connection between cooperation in law
enforcement and changes in the system of state prosecutions under PL 280. Thus,
cooperative law enforcement agreements do not produce a more responsive and
accountable system for dealing with socially disruptive conduct by tribal members on
reservations.